[12] A plaintiff or potential plaintiff may seek pre-action discovery in order to identify a defendant by way of an equitable bill of discovery known as a “Norwich order”. In Norwich Pharmacal Co. v. Commissioners of Customs & Excise, above, the case that gave its name to the order, Norwich Pharmacal was the owner of a patent that it claimed was being infringed by the illicit import of a product manufactured abroad. It brought an action against the Customs and Excise Commissioners seeking disclosure of the names and addresses of the importers. The House of Lords held that where a person becomes involved in the tortious acts of others, even innocently, that person has a duty to give full information to the injured party, by way of discovery, to disclose the identity of the wrongdoer.

[13] On August 21, 2009, the Court of Appeal for Ontario released its decision in GEA Group AG v. Ventra Group Co. 2009 ONCA 619 (CanLII), 2009 ONCA 619 (GEA Group), which conducted an extensive review of the Canadian cases in which Norwich orders have been granted and discussed “the circumstances in which this extraordinary discretionary relief may be obtained in Ontario” (at para 1).

Et la conclusion dans ce cas-ci:

[39] In summary, in this case, I was satisfied that:

(a)the plaintiff had established a prima facie case of defamation and the claim appeared to be reasonable and made in good faith;

(b)the defendants Bell and Rogers, although innocent of any wrongdoing, were implicated in the alleged defamation because their services were used for publication;

(c)reasonable efforts had been made, with no success, to obtain the information from the only known potential source;

(d)the costs of compliance were nominal and had been met;

(e)without the information sought, the plaintiff would be without a remedy;

(f)the internet service customer(s) who published the communications could not have a reasonable expectation of privacy in relation to the use of the internet for the purpose of publishing defamatory statements; and

(g)the disclosure of the information was for the limited purpose of enabling the plaintiff to commence litigation, if so advised.